Saturday 16 February, 2019

Por Eugenia Iglesias

Saturday 9 February, 2019

Por Eugenia Iglesias

Saturday 2 February, 2019

Por Eugenia Iglesias

What could be more of a no-brainer than decreeing that the illgotten gains from corruption
and drug-trafficking go to the public purse for use on behalf of honest citizens?
Yet the legal technicalities surrounding
President Mauricio Macri’s emergency
decree to that effect may begin with its
curious name – the literal translation of
“extinction of domain” does not work in
English because “eminent domain” is a
rather different kettle of fish, as the concept justifying the state confiscation with
compensation of perfectly legal private
property for some higher public purpose
such as building or expanding a road –
but they certainly do not end there.

The timing of this decree for asset recovery from illegal gains (hereinafter to be
referred to as Decree 62/2019) is already
curious, coming on the eve of extraordinary sessions of Congress – surely the
whole point of extraordinary sessions is
to circumvent the need for such emergency legislation, only justified in the absence of Congress. The whole concept of
urgency is somewhat baffling. Looking
at a real emergency today, Venezuela,
nobody could deny that somebody proclaiming himself president in the middle
of the street is constitutionally irregular
to say the least, but equally nobody could
deny that Venezuela is in an acute crisis.
But where is the urgency here when the
appropriate legislation is being processed in Congress while the corrupt (when
not protected by parliamentary privilege)
are all facing trial, even if both the legislative and judicial branches are moving
at a distinctly more sedate pace than the
Executive?

If Macri’s aim were to pressure rather
than override Congress, he would be
more within his rights – Argentina’s current Criminal Code provisions for such
asset recovery leave much to be desired,
while the tardy parliamentary progress
since the mid-2016 introduction of the
bill (eventually approved by both chambers but now languishing in the Lower
House because of Senate amendments)
probably owes more to Kirchnerite stonewalling than due procedure. But whatever the flaws of Argentina’s political
class and judiciary, Macri is trampling
on the separation of powers at both ends
with Decree 62/2019 – not only bypassing
the legislative branch just ahead of its extraordinary sessions but also regulating
an item of the Criminal Code, which is
the exclusive prerogative of the Judiciary
(also threatened by the bill’s creation of a
special prosecutor).

One basic problem of Decree 62/2019
is that it falls short of being the blanket
assault on corruption which its slapdash
presentation might suggest. Neither tax
evasion nor such financial irregularities
as illegal currency exchange fall within
its domain and nor is the problem of
dummy ownership of misallocated assets (which can also be resold into wholly
innocent hands) properly tackled.

Yet the two most direct obstacles to
Decree 62/2019 being constitutionally
kosher are its inversion of the burden
of proof and its retroactive application,
as some observers have pointed out this
week. Inverting the burden of proof, by
obliging the accused to demonstrate the
legality of their assets rather than the
prosecutor their illegality overrides a fundamental premise of Argentine jurisprudence – innocent until proven guilty. This
should not mean that those accused of
corruption be allowed a free rein of their
assets until final conviction nor that the
death of the defendant or the statute of
limitations should magically whitewash
such assets – what it does mean is that
more work should go into making Decree
62/2019 compatible with this fundamental principle of justice.

There are more serious problems with
the retroactive application – and not only
because umpteen laws have been ruled
unconstitutional on those grounds. Backdating the decree 20 years looks highly
arbitrary since it seems to target the Kirchnerite presidencies during most of those years (indeed so sloppy is the wording
of this decree that it does not clarify if it
also covers the next 20 years) – a cynic
might also note in passing that the bulk
of the Macri business dynasty’s fortune
fuelled by state contracts was made in
the last three decades of the past century
preceding this period.

Yet whatever the criticisms, one should
never forget that the perfect is the enemy
of the good, nor throw out the baby with
the bathwater by discontinuing the war
on corruption because of this decree’s
flaws – instead Macri should take this
decree back to the shop, to Congress or
even the people in October. Presumably
his real aim amid the economic gloom.
Electoral grandstanding is part of the
political game but not at the expense of
the Constitution.